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“Right to say goodbye” is legally protected

The family of a deceased prisoner brought a legal action against the prison, complaining about having been prevented from seeing their loved one while he was dying in the prison’s hospital. The Helsinki Foundation has submitted an amicus curiae brief in the proceedings.

In the opinion, the HFHR underlines the importance of inmates’ right to maintain contact with families and loved ones. Although the prisoners’ separation from families, homes and local communities is the essence of deprivation of liberty as a penalty, pursuant to international standards inmates cannot be deprived of the right to protection of private and family life.

In the brief, the HFHR invoked the European Prison Rules, in accordance to which upon the admission of a prisoner to a prison, the death or serious illness of or injury to a prisoner, or the transfer of a prisoner to a hospital must immediately be communicated to the prisoner’s spouse or partner, unless the prisoner has requested otherwise. Similar standards result from UN Nelson Mandela Rules adopted in October 2015.

The existing jurisprudence of the ECtHR shows that the implementation of the right to respect for private and family life of persons deprived of liberty in Poland is yet to be improved. The Court ruled on cases in which prison authorities prevented a person deprived of liberty from taking part in the funeral of a closed relative, which led to a violation of Article 8 of the Convention that ensures the right to respect for private and family life. “Although the case in which we submitted the amicus curiae brief concerns other issues than those appearing in the applications formerly resolved by the ECtHR, the Strasbourg Court’s case law allows to describe the scope of duties imposed on the state and a manner of interpretation of such duties”, says Katarzyna Wiśniewska, a lawyer working with the HFHR. “In our opinion, the Court’s judgments suggest that the right to say goodbye should be afforded Convention protection under Article 8”, Ms Wiśniewska adds.

Furthermore, the protection given to “family ties” under Polish law, and in particular that existing within the framework of personal interests, supports the conclusion that “the right to say goodbye” with a dying person may be considered a personal interest. “If family ties, or certain special ties between people, deserve to be protected under law, then arguably a similar protection should be granted to the presence of loved ones with a dying person or the last goodbye”, says Michał Kopczyński, HFHR’s lawyer.

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